United States Court of Appeals

for the Fifth Circuit

No. 23-50412

Summary Calendar

United States of America, 

Plaintiff—Appellee, 

versus

Gerardo Mora Ornelas, 

Defendant—Appellant. 

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:21-CR-213-1 

Before Jones, Southwick, and Ho, Circuit Judges.

Per Curiam*:

Gerardo Mora Ornelas appeals the denial of his motion for immediate 

release under the First Step Act. This Act permits courts to reduce a 

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* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion 

should not be published and is not precedent except under the limited circumstances set 

forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 2, 2023

Lyle W. Cayce

Clerk

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defendant’s term of imprisonment when “extraordinary and compelling 

reasons warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A)(i). Ornelas 

argues that the district court failed to give adequate reasons for denying his 

motion. Because the court’s explanation was adequate, the order is

AFFIRMED.

Ornelas had nine prior criminal convictions for various offenses from 

1986, when he was 20 years old, to the present. These included driving while 

intoxicated, cruelty to animals, terroristic threat, and conspiracy to distribute 

cocaine. Id. The presentence investigation report (“PSR”) recommended a 

guideline imprisonment range of from 235 months to 283 months, based upon 

a total offense level of 37 and a criminal history category of II. The district 

court, in a Statement of Reasons, explicitly adopted the PSR “without 

change.” The court sentenced the defendant to 255 months, which is within 

the range recommended. 

About fifteen months later, Ornelas moved for immediate release, 

arguing that he was at risk of serious illness or death from COVID-19 because 

of his underlying medical conditions: hypertension, tricuspid valve disorder, 

cardiomyopathy, hypothyroidism, hyperlipidemia, gastroesophageal reflux 

disorder, compromised immune system, diabetes, and obesity. The district 

court denied release. The court explained its decision by stating that it 

“considered . . . the applicable factors provided in 18 U.S.C. § 3553(a), and 

the applicable policy statements.”1

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1 The court is required to consider these factors in deciding a motion for immediate 

release. 18 U.S.C. § 3582(c)(1)(A). The factors “include (1) the nature and circumstances 

of the offense and the history and characteristics of the defendant; (2) the need for the 

sentence imposed; (3) the kinds of sentences available; (4) the kinds of sentenced and 

sentencing range established for the applicable category of offense or defendant; (5) any 

pertinent policy statement; (6) the need to avoid unwarranted sentence disparities among 

defendants with similar records; and (7) the need to provide restitution to any victims of 

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This court has previously upheld similar orders. See, e.g., United 

States v. Escajeda, 58 F.4th 184, 188 (5th Cir. 2023) (denying release where 

the district court’s order stated that the court “consider[ed] the applicable 

factors provided in 18 U.S.C. § 3553(a) and the applicable policy statements 

issued by the Sentencing Commission”). In addition, the district court had

previously explained its reasons for the length of the term of imprisonment

at sentencing. This case therefore differs from United States v. McMaryion, 

No. 21-50450, 2023 WL 4118015, at *2 (5th Cir. June 22, 2023) (remanding 

for further explanation because the district court’s order was 

“perfunctor[y]”).2 In that case the sentencing judge was not the same judge 

who decided the motion for immediate release. Id. at *1. But here, 

Judge Counts, who decided the motion for immediate release, also issued the 

original sentence. His order denying release must therefore be read in the 

context of the rest of the record. See United States v. Stanford, 79 F.4th 461, 

463-64 (5th Cir. 2023). Judge Counts gave an indication of his thinking at the

time of the original sentence by adopting the PSR and choosing a sentence 

within the recommended range. The district court “considered the 

applicable factors and denied relief. It did not need to say more.” Escajeda, 

58 F.4th at 188.

The order denying the defendant’s motion for immediate release is 

AFFIRMED.

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the offense.” United States v. Chambliss, 945 F.3d 691, 693 n.3 (5th Cir. 2020) (citing 

18 U.S.C. § 3553(a)). 

2 This unpublished opinion is cited only to show the consistency of our precedent.

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